Transcript Federalism

Federalism
Prepared by Teresa Nevárez, El Paso Community College
© 2008 Pearson Education, Inc.
Chapter 2
Federalism
Background: Federalism is the
constitutional division of authority
between a national government and
states or constituent governments.
The Constitution enumerates federal
powers but does not define them. This
has brought about an endless debate
over the definition of the boundaries of
national authority.
Federalist 16, 17: Alexander Hamilton
Federalist 16
• The goal is to construct a federal government
capable of regulating common concerns and
preserving general tranquility
• Government should be empowered to execute its
own resolutions
• Commerce, finance, negotiation, and war should be
in the hands of a national government
• Local governments must have jurisdiction over the
administration of private justice, agriculture, etc.
• The national government would never encroach on such
issues since it would be troublesome and nugatory
Federalist 16: Alexander Hamilton
• Greater possibility for states to intrude upon the
national authorities
• States have a greater degree of influence over people
• People of each state are apt to be more biased toward local
governments
The Anti-Federalist Papers
Background: All the Federalist Papers
were signed under the nom de plume
Publius. The Anti-Federalists were
disjointed, with no unified direction and
would be signed under various names:
Brutus, Country Boy, Cato, etc.
Nonetheless, both recognized the
importance of a nation of law, not of
men.
Anti-Federalist 17: Brutus
• The necessary and proper clause provides absolute
and uncontrollable powers to the national
government
• It will control protection, security, and defense,
possible weapons for oppression and tyranny
• The supremacy clause of the national Constitution
nullifies the laws of every state that are inconsistent
with it
• A small degree of power is left to the states
• The national government has unlimited power to
raise taxes
• States will see their power dwindle as their
authority to raise taxes diminishes
Anti-Federalist 17: Brutus
• The necessary and proper clause will abolish the
state legislatures
• The national courts will eclipse and swallow up the
powers of the state courts
• The Constitution’s goal is to revert to a unitary
government
Federalist 44: James Madison
• Without the necessary and proper clause, the
Constitution would be useless
• Enumerating all the powers would have been
disastrous
• Omitting powers could be interpreted as
automatically granting them
• State legislatures will be quick in their vigilance of
the national government and to exert their power to
prevent any infringement over their jurisdiction
Federalist 45: James Madison
• Not one of the powers granted to the federal
government is unnecessary or improper
• If the Union is essential to the security of the
people, the power to secure against oppressive
factions should be under the national government
• The supreme objective of the national government
is to protect the welfare of the great body of people
• The state and national governments will be
interdependent
• The states are regarded as the constituents of the
national government
• Senate will be elected by state legislatures
• The president of the Union will be elected with the
assistance of the states
Federalist 45: James Madison
• The number of people working for the national
government will be by far less than those working
for the states
• Powers delegated under the Constitution to the
federal government will be few and defined
• War, peace, negotiations, and foreign commerce
• Powers reserved under the Constitution to the
states will be numerous and indefinite
• Lives, liberties, properties of the people, internal order,
improvement, and prosperity of the states
• The new Constitution is not proposing new powers
for the central government but the strengthening of
its original powers
Federalist 39: James Madison
• Definition of Republic:
• A government that derives its powers from the people
• The government is administered by individuals holding
offices for a limited tenure
• In state governments:
• Tenure of highest offices is extended to a definite period
• Tenure for justices based on good behavior
• At the federal level:
•
•
•
•
House of Representatives is elected directly by the people
Senate is elected indirectly by the people
Judges are a remote choice of the people
The president may be impeached at any time
Federalist 39: James Madison
• States appointed delegates to ratify the Constitution
on behalf of the people
• The proposed government has enumerated powers.
All other powers belong to the states.
The Merits of the Federal System:
James Bryce
A federal system:
• Offers the means to unify a country at the same
time that it respects the uniqueness of the different
institutions or levels of government
• Supplies the best means of developing a new
country in a natural and spontaneous way
• Prevents the rise of a despotic central government
Federalism and local self-government:
• Self-government stimulates the interests of the
people; sustains local political life; educates citizens
in their duties, teaches perpetual vigilance to attain
the goals of a good administration; liberty and
collective prosperity
• Federalism diminishes risks
The Merits of the Federal System: James Bryce
• Federalism enables people to experiment
• Federalism distributes power in such a way that it
relieves the national legislature of duties that would
prove otherwise too heavy for it
• The American Constitution provides the national
government direct authority over all citizens while
at the same time empowering the states as well
• Both states and the national government look for
mediation through an independent body
Implied Powers and the Supremacy of
National Law
Background: The Supreme Court has
played a determinant role in
developing the federal system. Often,
its most historic opinions have upheld
the national power at the expense of
the states by applying the doctrines of
implied powers and the supremacy of
national law.
McCulloch v. Maryland (1819)
Does Congress have a right to incorporate or charter
a national bank even though it is not stipulated
anywhere in the Constitution?
• Government of the Union is supreme within its
sphere of action
• The incorporation of a bank is not stipulated in the
Constitution; nonetheless, the powers to collect
taxes, borrow money, regulate commerce, raise an
army, and declare war are
• The federal government should have the means to
execute its ample and vital powers
• The intent of the framers was not to deprive the
national government of the means to carry out its
enumerated powers
McCulloch v. Maryland (1819)
• The Constitution must allow the national legislature
the discretion to carry out the powers it confers to it
• The power to tax is a concurrent power
• The power to create implies a power to preserve
• When powers are concurrent, the authority which is
supreme must control
• The states have no power to burden or impede the
operations of a constitutional law enacted by Congress
• Thus, the act of incorporating the bank is constitutional
Interpretation of the Commerce Clause
Background: Gibbons v. Ogden is the first
major case interpreting the commerce clause.
In 1798, the New York legislature granted R.
Livingston a monopoly over the navigation of
its state waters by steam boats. In 1793
Congress passed an act providing for the
licensing of vessels engaged in coastal trade
and Gibbons obtained under this new law a
license to operate boats between New York
and New Jersey. Ogden was engaged in a
similar operation under a license granted by
Livingston and wanted to prevent Gibbons
from further operation.
Gibbons v. Ogden (1824)
Gibbons contends that the New York law is
unconstitutional because Congress has the right to
regulate commerce and to promote the progress of
science and the useful arts
• The last of the enumerated powers gives Congress
the right to do anything that is necessary and
proper to carry out its enlisted powers
• From its very beginning, navigation has been
regulated by the national government with the
consent of all
• The power to control commerce does not stop within
the jurisdictional lines of the several states
• Congress has the power to control commerce with
foreign nations, among states, and with Indian
tribes
Gibbons v. Ogden (1824)
• Laws created by the states have validity insofar that
they do not interfere with those acts enacted by
Congress
• Insofar that the laws of New York contradict the
Constitution, they are null
National Power Over the States:
a Recurring Constitutional Debate
Civil War Amendments
• 13th: Abolishes slavery
• 14th: grants citizenship to those born in the country;
establishes due process; bars states from denying
privileges and immunities to citizens
• 15th: prohibits both federal and state governments
from denying the right to vote on account of race,
nationality, or previous condition of servitude
• The enforcement clause of the Civil War gave
Congress the ability to create the appropriate
legislation to enforce the 13th, 14th, and 15th
amendments, thus expanding its power over the
states on the issue of civil rights
National Power Over the States:
a Recurring Constitutional Debate
Gibbons v. Ogden Revisited: Federalism and
the Commerce Clause
• After 1836, the Court adopted a more restrictive
view of the national commerce clause. However,
this changed in 1937 with Franklin D. Roosevelt’s
New Deal. Congress turned to the commerce clause
for the legal authority to enact the Civil Rights Act
of 1964. Government argued that racial
discrimination in public accommodations impedes
interstate travel by those discriminated against,
causing disruption in interstate commerce.
• The road has not been easy for either the states or
the national government, both of which have
defended their sphere of power enormously
The Supreme Court Redefines “Necessary and
Proper”
Background: In 1994, Congress passed the Violence
Against Women Act, stipulating that all people
within the U.S. shall have the right to be free from
crimes of violence motivated by gender. This law
was based on the right of Congress to regulate
commerce. Although the law had general support,
had Congress gone too far?
United States v. Morrison (2000)
In 1994, Cristina Brzonkala, a student at Virginia Tech, was
assaulted and raped repeatedly by two football players.
In early 1995, she filed a complaint with the school
against the two football players. The school found one of
the students guilty (Morrison) but had insufficient
evidence against the other student (Crawford). Morrison
was suspended for two semesters. In July 1995,
Morrison appealed and was found guilty again, not of
sexual assault but of using abusive language. By August
of 1995, the VP of Virginia Tech set aside Morrison’s
punishment and Ms. Brzonkala decided to sue Morrison,
Crawford, and Virginia Tech in a U.S. District Court. The
District Court dismissed her case, stating that Congress
lacked the authority to pass the Violence Against Women
Act.
United States v. Morrison (2000)
• The interpretation of the commerce clause has changed
to fit the times
• Gender-motivated crimes of violence are not in any way
economic activities
• The interpretation by Congress that it would be able to
create such a law based on the impact violence against
women has on employment, production, transit, or
consumption is too broad since it would mean that it
would be able to regulate murder or any other type of
violence
• Family law traditionally has been a reserved power
• Ms. Brzonkala deserves reparation from the state of
Virginia
• The Violence against Women Act exceeds congressional
power
California Medical Marijuana Law
Background: California voters, though
a state initiative, passed a proposition
in 1996 that would allow the use of
marijuana for limited medical
conditions. The California law
conflicted with the federal Controlled
Substance Act under Title II of the
Comprehensive Drug Abuse Prevention
and Control Act of 1970.
Gonzales v. Raich (2005)
• California is one of at least 9 states to authorize the
use of marijuana for medicinal purposes
• The question is whether California’s law is in conflict
with Congress’ right to do anything necessary and
proper to carry out its powers
• The law creates an exemption from criminal
prosecution for physicians, patients, and primary
caregivers who posses or grow marijuana for
medical reasons under the approval of a doctor
• Angel Raich and Diane Monson were patients
protected under the state law
• In August 2002, the DEA and county deputy sheriffs
seized and destroyed their cannabis plants
Gonzales v. Raich (2005)
• Raich and Monson were seeking injunctive and
declaratory relief
• Congress has the right to control local activities that
have an effect on interstate commerce
• Enforcement of federal laws would be difficult when
trying to distinguish locally grown marijuana from
that grown elsewhere or resulting from illicit
channels
A Republic Subverted: David Broader
• The initiative process is favored by populists and
exploits the public’s distrust of politicians
• The Constitution continues to be a sound foundation
for our government
• Erroneously, some argue that technology and the
science of public opinion have made of our
Constitution an outdated document
• In half of our states, hundreds of laws are being
passed through initiatives
• None of these laws going through the traditional process
• Government by initiative is a radical departure from
the Constitution’s system of checks and balances
A Republic Subverted: David Broader
• Initiatives are a tool of direct democracies, an evil
the framers fought against
• The republican principle of indirect democracy must
be restored
• Many of these initiatives violate rights guaranteed
under state constitutions
• Many of these initiatives are introduced by special
interests or individuals not even living within the
communities
• Initiatives are a direct result of the alienation of
Americans from their political system of
representative government